Wednesday, February 28, 2024

Attorney General urges the ConCourt to expeditiously deal with eligibility case before the 2021 elections

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Attorney General Likando Kalaluka
Attorney General Likando Kalaluka

Attorney General Likando Kalaluka has urged the Constitutional Court to expeditiously deal with that case President Edgar Lungu’s eligibility to contest the 2021 elections before the 2021 elections.

This is in a matter in which four political parties namely Christian Democratic party,Zambia Republican party,New Congress party and Citizens Democratic party are seeking the court’s interpretation of President Edgar Lungu’s eligibility to stand in the 2021 elections.

Mr Kalaluka said that dragging matter until 2021 may disturb various electoral processes.

However, Constitutional lawyer John Sangwa, who is representing LAZ, argued that submissions by the Attorney General that the Constitutional court should deal with the matter before 2021 should not be entertained as it is not a legal, but moral issue.

The Attorney General submitted before the Constitutional Court that President Edgar Lungu is eligible to contest the 2021 presidential election.

Mr Kalaluka submitted before the bench of seven Constitutional court Judges that President Lungu qualifies to stand in 2021 because he only served one of the inherited term as opposed to the three years considered to be a full term of office by the amended constitution.

He said the current constitution does not cover circumstances under which President lungu was elected, urging the court to go back to the records of Parliament.

Mr Kalaluka wondered why President Lungu should be treated differently from others such as members of parliament and councilors who inherit a term of office and serve for less than three years in office.

But Mr Sangwa argued that President Lungu is not eligible to contest the 2021 elections he has already served two terms as stipulated by Article 106(3) of the constitution.

Mr Sangwa was further supported by lawyers representing the UPND who insisted that President Lungu is not eligible to stand in the 2021 presidential election asking the Constitutional court dismiss the matter.

UPND lawyer Keith Mweemba submitted that President Lungu was elected twice as president and did not assume the office through the vice presidency.

However, lawyer Bonaventure Mutale who is representing the four political parties submitted that President Lungu should be allowed to contest the 2021 presidential election arguing that his stay in office from 2015 to 2016 does constitute a full term of office.

The matter has since been adjourned to 8th May,2018 for continued hearing

65 COMMENTS

    • How on earth should it be difficult to tell ECL has been sworn in twice; thereby service twice as president? It’s shameful to think attorney general is defending the political leader and not the govt. This is where Zambia drives me crazy. And then AG pushed for expedited dispensation of case after piling corrupt judges. Useless!

    • Very simple case at law … this one is. I must admit I am not a lawyer by profession but I have a pretty good read on the law as I deal with lawyers all the time.

      Here are the facts:

      1. When ECL got elected in 2015 we had the choice of giving him a full new 5 year term.

      2. LAZ and the same opposition come up and insisted that ECL didn’t need a new full 5 year mandate because he was finishing MCS’s term.

      3. The rationale was that ECL would not win since he was considered a novice at presidential elections, they counted wrong.

      4. They were sure that they had rigged enough in Southern Province by ballot stuffing giving an above national average voter turn out and they still lost.

      5. Then they turn to eligibility using a technicality of being sworn in twice. They will lose…

    • Continued…

      5. Then they turn to eligibility using a technicality of being sworn in twice. They will lose this case because they seem to be moving the goal post just so they can beat one individual.

      Conclusion: at law, you don’t enact to apply selectively but rather inclusively and the learned judges will weigh their decisions based more on the above.

      So, just like the petition and the impeachment and now term limits all these are met to help some loser find a short cut to State House.

      The only way there is through a popular vote and the mandate given every 5 years by the smart people of the Zambian Enterprise.

      Hakalusa Hagain!!

    • What the concourt has to decide in simple logic is DID LUNGU ASSUME OFFICE IN THE OLD OR NEW CONSTITUTION. AND IF ANSWER IS AGREED THEN THE OLD CONSITUTION SHUD GUIDE US.
      The New constitution cannot rule on matters which have taken effect in the old constitution.
      You will notice that the clause in the new constitution was toilered to suit Ecl.
      chagwa cannot have the cake…….!

  1. President Lungu is eligible had hh won the 2015 elections was he going to be in this precarious position and the answer is no. UPND lawyers are there just to serve hh and not the constitution of Zambia

    • @Fwanya: it’s not about HH or ECL, read the 2016 amended Constitution carefully, then put your argument quoting from the Constitution and not what you think is logical. Article 106(3) is very clear on this issue.

  2. This is a straightforward case! Only those who live in the denial land think that the president is not eligible to stand! Completing a term of a deceased president is not the same as a term for the person who completed it! Someone studied economics and must have been a C student, if he had done law or political science he could be wiser. I don’t even know why he wants to be a president! To sell Zambia to bidders, of course!

    • As far as you are concerned a player who substitutes an injured player in 75th minute must be given 75 minutes more after the full 90 minutes eeh? Do not live on assumptions, read and understand the constitution. The AG and his fellow lawyers supporting the petitioners know the truth but at this point need the money that is all.

  3. How does the ConCourt work in Zambia? There seems to be a lot of delays in many cases. One would have thought the ConCourt is special and unique, such that it should operate with special rules and schedule given the gravity and agency or the issues/cases it deals with.

    Why don’t the model the U.S. Supreme Court. Decide what and which cases they will hear and which ones should be kicked back to Lower Courts or let the Lower Court’s decision stand, then inform the parties to prepare for arguments and set a specific date for those arguments….NO POSTPONEMENTS OR DELAYS ALLOWED. After that tell the when they should expect a decision. And there you have it, and move on to the next case. What is so difficult about that? At least this way the Court will creating some certainty in the…

    • Its like the ConCourt in Zambia is operating as any other court of appeal instead of one that interprets the Law (Constitution) as written. It indeed would be progressive if the ConCourt operated on firm decisive ground without delays and leaving postponement behavior to lower courts! Do judges of the ConCourt really believe they are the ultimate legal body for justice?

  4. I think we need a more detailed article than this one. The AG must have quoted provisions from the Constitution just like Sangwa. But the way the story is written it seems the only thing the AG talked about was the issue of time and the President not having stood twice. This issue is very important and is being followed closely by some of us. So, please ba Lusakatimes, we need more ‘meat’ on this article.

  5. Just watching with curiosity. Hope someone mentions HH’s 5 terms in office without holding party elections that other parties have. Chiwamina galu.

    • this is not a party affair, this is a case of our constitution. how many times did Sata lose but he never gave up because he had a vision and so does HH

  6. Prof. HaNsoni, “Badala, I do not know what will happen after 2021!” Prof. HaNdulo, “Concerning what? Badala.” Prof. Hansoni, “If he loses Hagain, Badala!” HaNdulo, “I think there will be a lot of pressure to get another leader for our tribal gathering party.” Prof. Hansoni, “That is where my fears, Badala, are!” Prof. HaNdulo, “I think the Vice President will naturally take the presidency, GBM will lead our party!” Prof. Hansoni, “That is my fear!” Prof. HaNdulo, “I know he is Bemba! He is thief! We can’t have him right? Besides, only a Tonga can lead UPND!” Prof. Hansoni, “Ee Badala, that is my fear!” Prof. HaNdulo, “But why do we have him now?” “Kekeke!” (in unison).

    • Be reasonable and sensible. To think that your education we sibsidised only to unleash this isngrossly disheartening. And you are the kind of people this country has ceded knowledge to exhume its chances of survival?

    • Sharon, Be reasonable and sensible. To think that your education we subsidised only to unleash this grossly shallow post is disheartening. And you are the kind of people this country has ceded knowledge to exhume its chances of survival?!!

  7. All those in PF pushing for this third term will live to regret it. Given Lubinda, Chitalu Chilufya have both been assured to be running mates in 2021 so that they succeed Lungu in 2026. By 2023, if PF corrupt their way into power like previously, Lubinda and Chilufya will be hounded out, preparing grounds for another Constitional change to allow for 7 year term for the President; and that Lungu would from that moment be eligible for two seven year terms. At that point, even those corruptly eating today will start vomiting their loot.

  8. As long as ecl stands forget about HH . He is no match

    HH can only compete with member . Nawakwi. Ck . Mulongoti etc

    Unfortunately ecl is on the ballot

    Kkkkkk

  9. I am sure you asked JayJay and HaSpa to be reasonable, then you came to me, right? I am glad I am not reasonable to you! I am reasonable to me! Or to myself if you want!

  10. president lungu is not eligible to stand in 2021, the reason is very simple because, he held the office of president twice ,the constitution is very clearly if he or she has held the office of president twice is not eligible for the third term regardless of the period.

  11. THIS WHOLE ISUE OF ELIGIBILITY, IF LET TO THE CON-COURT ALONE WITHOUT PUTING THE ISUE OF SORTING OUT CONSTITUTIONAL AMBIGUITIES INTO CONCIDERATION FIRST, MAY RESULT INTO POLITICAL PLAYERS PLAYING A DOUBLE STANDARD, BEING ON BOTH SIDES OF THIS EXERCISE, VISE VERSA eg. IF THE CONCORT RULED THAT ECL IS ELIGIBLE FOR 2021, HOW WOULD THE ANTICIPATED CONSTITUTIONAL AMBIGUITIES (CLEAN UP) SIT IN PARLAMENT, MEANINGFUL BEFORE OR AFTER THE CON-COURT RULING? UNFORTUNATE WALK OUTS PROBABLY, OR IF THE CON-COURT RULED AGIANST ECL, THEN LATER TABLED IN PARLAMENT, PROBABLY OVERTURNED LATER BY A VOTE IN THE HOUSE, HOW WOULD THAT SIT AGAIN? I FEEL THAT IT MIGHT BE BETTER IF WE LET THE CONSTITUTIONAL AMBIGUITIES ISUE SORTED OUT BY THE MEMBERS OF PARLAMENT FIRST, HAVE A CLEANED UP CONSTITUTION WHICH THEN CAN…

  12. Do we have competent lawyers or the guys are trying to have a job? Sangwa and Mweembe article 106 is not only about clause 3. Why not interpret the whole article in totality up until clause 6. ECL is very much eligible to stand in 2021 unless l am looking at some outdated constitution. Clause 6 clarifies clause 3 and it’s about how many times one was sworn or being elected

    • @14: Article 106(6) specifically refers to the current scenario whereby the Vice President takes over presidency in case something happens to the sitting President. Note that there is no election mentioned.

    • @ Sochabe Article 106(6) does not only mention Vice President it states that ” the Vice President or Elected President”. I am really concerned by people choosing to read the constitution clauses in part. Why should a person who knows to read and write choose to do a thing like that. Let us look at the constitution with sober minds. It should not be targeted at ECL but just to uphold the constitution. Yes Edgar Lungu has been sworn in twice but one term was less than 3 years which according to the same article 106 is not considered a term hence the term he is serving now is what will be taken as first term. Please the article again patiently then post your comments.

  13. Truly the law is an ass or it makes the players asses. I sometimes enjoy to watch the so called learned friends battle it out. It is like may the cleverer Ass win.

  14. The new constitution says if a person serves less than 3 years then it is not counted as a full term.

    • The question is Did ECL serve the 3 years under the new constitution or the old one which did not have this clause?

  15. As long as Irene Mambilima isn’t sitting on that panel, it’s a court without the Head of the Judiciary. What kind of a monster is this? Not even Marvin Mwanamwambwa is there then you call it a court of final judicature? I don’t understand

  16. I posted the constitution quotation here and it has been removed. For what reason? LT please bring back my constitution quotation so that people know what they are talking about.

  17. Article 106 Clause(6) : If the Vice-President assumes the office of President, in accordance with clause (5)(a), or a person is elected to the office of President as a result of an election held in accordance with
    clause 5(b), the Vice-President or the President-elect shall serve for the unexpired term of office and be deemed, for the purposes of clause (3)—(a) to have served a full term as President if, at the date on which the President assumed office, at least three years remain before the date of the next general election; or
    (b) not to have served a term of office as President if, at the date on which the President assumed office, less than three years remain before the date of the next general election. ARGUE USING THE LAW PLEASE

    • Section b of article 106 (6) of the constitution of Zambia clearly shows that Edgar Lungu will have served only one presidential term at the end of this term. Is this really difficulty to understand? Why should we waste time on straight forward constitution matters. Does it mean UPND can only win elections if ECL does not stand? Come UPND you are smarter than that. What is the campaign message why Zambians should vote in UPND? Whether ECL stands or not what will win UPND the elections is convincing Zambians why they should take over the leadership of this nation and not whether Edgar Lungu stands or not. The nationality debate is targeted at stopping ECL from standing in 2021. Has UPND lost hope as long as ECL is competing? You can do better.

    • “Article 106 Clause(6) : If the Vice-President assumes the office of President, in accordance with clause (5)(a)”

      You are assuming ECL assumed presidency as a Vice president, clearly which was not the case

  18. @ Sochabe look at the above @ 19. President elect is one who has been elected after an election has been held. V/P becomes President by default.

  19. “So sobelenge mayo, so sobelenge mayo! Sobelenge HH and his group are fearful mayo!” Palibe cabo! 37.

  20. Eligibilty case = nonsense. That’s how we undeveloped Zambia cuz we hop and jump from one election to the next without leaving time for serious development in between.

  21. @Dominion has put everything clear even for a dull UPND member who fears ECL to understand.if you clearly understand our constitution from articles stated above,you will agree with me that indeed ECL is eligibal to stand in 2021 because he never served 3 years as a president elect before 2016 elections.
    John Sangwa is eating HH’s money.The A Team (Bonanveture Mutale SC,Prof.Patrick Mvunga SC,Eric Silwamba SC,etc) who representing ECL know too well that he is eligibal.The A team is the best Zambian lawyers!!!
    INDEED HH MUST JUST PLAN HOW TO COMPETE WITH ECL’S PF IN 2021!!!

  22. The ones who came up with the three year period to quantify term office were very thoughtful. Imagine a sitting President dies six months before his term ends. The other person who would go in the office would have only about six months at the most.

  23. Why do I get a feeling that ECL will be on ballot in 2021 through Concourt ruling or pending constitutional ‘clean-up or both? Since UPND are ‘educated’ I am sure they will use their knowledge of Game Theory to plan for all possible outcomes….No. there is no need to plan. HH will still be their candidate and GBM running-mate again. Same plan but expecting different results. Albert Einstein had a name for this type of behavior.

  24. WHEN MY SONS SPENT A TERM AT MPELEMBE, I PAID FULL TERM FEES BUT
    WHEN MY SECOND SON SPENT HALF A TERM, I PAID HALF OF THE FEES.

  25. ECL just completed a term of someone and I cant consider it a full term. Whatever is there to stop ECL to contest 2021 elections, this one will never unless pigs fry.

  26. UPND really think like dogs because of fearing hh whom they consider to be their god who cannot die but live forever because of being brainwashed and group think mentality.

  27. It is shocking that even some learned people do not understand this simple English: “anyone who has been elected TWICE to the office of President cannot stand again”. So it does not matter even if it was not a full term as long as that person was elected twice. Why do some people keep defending that which cannot be defended?

  28. Even HH is just pretending. He knows very well that Lungu is eligible to stand in 2021 because he served for less than three years following Sata’s death. This is why during campaigns for the 2016 elections, he warned Lungu not to expect a pension if he lost the elections because he would have served for less than three years by September that year.

    RB was entitled to a pension following Mwanawasa’s death because he served as president for slightly over three years. According to the amended constitution, a full term is defined as a period of between three and five years . So it stands to reason that Lungu is eligible to stand in 2021 .

  29. @CHINVINDINVINDI, we don’t apply law retrospectively. Once you amend a piece of legislation it over rules the previous one. When you join a company and they give you conditions of service regarding retirement, if after ten years you retire but in between there has been salary adjustments, they can’t base your retirement package computation on the first letter of employment, it has to be based on the current conditions of service.
    @Independent observer, Article 100 and 106 of the current constitution stipulates clearly what qualifies someone to stand as president. What you said about “TWICE” is not in the current constitution, may in the old one and remember we don’t apply law retrospectively. God bless you and every Zambian.

    • The TWICE issue has been brought in from the old constitution by lawyers who have deliberately decided to take advantage of Zambians knowing we rarely read bulk things except for exams. My only disappointment is that LAZ could be saying wrong things when they should bring everyone to the attention of the current constitution so that we stop wasting time on this debate. The opposition should be taking governement to task over Auditor General’s report , Fire Engines issues, Tax Evasion by mining companies, Mukula tree issues, manner in which contracts are awarded, The Toll Gates proceeds and the like. These are issues that citizens need to know about. Why are oppositions quiet about Auditor Generals report? Are they affected?

    • I don’t agree with your reasoning baba.
      the 1st term of office commence in the old constitution. It was amended to include the full term of not less than 3 years.
      it’s logical that the new constitution DID NOT REPEAL the old constitution. It therefore follows that the new constitution shall run concurrently. It means continually: like 1st full term of less than 3 years and another full term of 5 years under New amendment.
      I’m not a lawyer but an engineer.

  30. ECL was elected before amendment of the new constitution,so the first term it must be considered in previous constitution.

  31. The doctrinal question hinges on the old and new constitution. Does the new constitution supersede the old? If so, then to what extent? Is it starting afresh? Is it continuity? Is it a mix of old and new? Where the old constitution simply supersedes the new, then the second term of office and i.e., the last term is in progress. Where the new constitution simply supersedes the old, then the first term of of office is in progress and 2021 represents the second term of office. But things are more complicated than that. The transition from old to new constitution is not a physical process. It is a human exercise in which the rule of law is being challenged to set precedent, if necessary. To that extent, a vote by the judges of the constitutional court is the most suitable process after…

  32. It is a human exercise in which the rule of law is being challenged to set precedent, if necessary. To that extent, a vote by the judges of the constitutional court is the most suitable process after submissions. There should be no appeal after a ruling is made.

  33. Why – half term, this term, that term, kwati bwali. No I should have eaten ten lamps but you ate three more than me so when we cook another nshima I should eat three more because the nshima which was left from which you ate three lamps (Intoshi) was mine.

  34. The court will surely rule that Edgar is eligible to stand. However, I believe the spirit behind limiting rule to two terms is to ensure that no one person stays in office for more than 10 years, which Edgar will manage to do. In our debates let’s also consider the de/merits of this.

  35. PLEASE HONOURABLE LUBINDA, I HAVE AN IMPORTANT MESSAGE FOR YOU, ENSURE THAT YOU CONSIDER LODGING IN A 10YEAR TERM OF PRESIDENCY AT LEAST , SO THAT DEVELOPMENT CAN BE THE ORDER UNLIKE CONTINOUSE POLITICAL DEBATE OF TENURE OF OFFICE. LETS LEARN ALSO FROM OUR MONARCH FRIENDS, I THINK ZAMBIA MIGHT NEED A PRIME MINISTER IN THE FUTURE BECAUSE WE`VE CLAD SO MUCH MAD ON OUR PRESIDENCY SIT. IS IT TRUE THAT ISRAEL HAS A PRESIDENT, UNLIKE THE FAMOUSE PRIME MINISTER?

  36. LODGE IT IN FOR DEBATE IN PALARMENT SIR, I FEEL 5YEAR TERM IS A PANIC MODE. LETS HAVE ONE 10YEAR TERM OF OFFICE ONLY, THAT SHOULD APPLY TO MPS AND COUNCILORS TOO. WE NEED AMPLE TIME FOR DEVELOPMENT THAN POLITIKING. AFTER THAT TERM ELAPSES, COMMISSION OF INQUIRY CHECKS AND BALANCES IF MANIFESTOS IMPLEMENTED, IF NOT HANDED OVER TO THE COURTS.

  37. ConCourt should also recognise the urgent matter of making His Excellency President Lungu a Life President as a one off, due to a turbulent turmoil period in our political development brought on by Multi Party politics!

    Unless His Excellency wants to share some of the Life Presidency with, Fantastic Honourable Lubinda!

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